A 457 Visa holder has been unfairly dismissed despite fabricating his qualifications and recording his employer’s conversations.

A cook was employed by a Chinese restaurant in Adelaide on a 4-year fixed-term contract prepared by the Department of Home affairs. He was dismissed 18 months into the contract because of performance issues relating to customer complaints and fabricating his English-speaking qualifications. The employer claimed to have issued three warnings before dismissal.

The Fair Work Commission found that these warnings were manufactured after the dismissal, and the employee had only ever received occasional informal verbal feedback. The employer also exaggerated the complaints received; the history of shortcomings may have put the cook’s job at risk but was not sufficient for dismissal.

Fabricating his English language skills would have been a valid reason for dismissal. However, the employer did not act on this matter and continued to employ the cook for six months afterwards. The cook had another person sit his English language skills test but did not tell authorities or his employer until one year into his employment. The delay between becoming aware of fraudulent behaviour and dismissal suggests the employer did not regard it as serious misconduct. Therefore, in this case, this was not a valid reason for dismissal.

After dismissing the cook the employer discovered he had secretly recorded some conversations at work to assist in his case. The employer reasoned this justified a dismissal however, the Fair Work Commission stated the employee acted to protect his lawful interests so this not a valid reason for dismissal.

The employee divulged that his contract from the Department of Home Affairs specified wages however the employer forced him to return two-thirds to three-quarters of them. He was unable to complain about this because he was at risk of deportation without employment. The employer also demanded he paid $35,000 to make his visa sponsorship permanent. After he refused the employee was not paid for three months although he continued to work. The employer had few problems with the employee’s performance until he complained of his treatment to the authorities. After that, the employer set out to dismiss him.

The Fair Work Commission concluded that the dismissal was unfair, awarding only two weeks wages payout, deducted due to his misconduct, and pay in lieu of notice. Although various issues were raised (underpayment and immigration) the Fair Work Commission could only resolve the issue of unfair dismissal. The employer’s claim that fraudulent behaviour justified dismissal was undermined by the delay in action, only dismissing the employee after becoming aware of his complaints against them.

For advice and guidance regarding dismissing employees contact ProcessWorx on (08) 9316 9896 or enquiries@processworx.com.au

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Written by Danielle McNamee

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